The opinion of the court was delivered by: RICHEY
In Japan Whaling Association v. American Cetacean Society, 478 U.S. 221, 106 S. Ct. 2860, 92 L. Ed. 2d 166 (1986), the Supreme Court held that the Secretary of Commerce retained discretion to decide whether Japan's commercial minke and sperm whaling in contravention of an International Whaling Commission ("IWC") moratorium "diminishes the effectiveness" of the International Convention for the Regulation of Whaling ("ICRW") thereby avoiding mandatory "certification" of Japan for purposes of certain types of sanctions. In so doing, the Court reversed both the Court of Appeals, American Cetacean Society v. Baldrige, 247 U.S. App. D.C. 309, 768 F.2d 426 (D.C. Cir. 1985), and the District Court, American Cetacean Society v. Baldridge, 604 F. Supp. 1398 (D.D.C. 1985). By the instant motion, plaintiffs seek to reinstate the executive action prescribed by statute, i.e., certification of of Japan under the Pelly and Packwood-Magnuson Amendments. However, it is clear that plaintiffs' have misread the Supreme Court's decision and have placed undue emphasis on particular questions asked by several of the Justices during oral argument.
Contrary to plaintiffs' suggestion, the Supreme Court does not include among its constitutional powers the role of protecting the whales from the Japanese. Its role in this case was to review the legislative history of the Pelly Amendment to the Fishermen's Protective Act of 1967, 22 U.S.C. § 1978, and the Packwood Amendment to the Magnuson Fishery Conservation Management Act, 16 U.S.C. § 1801, to see whether Congress had addressed the nature of the Secretary of Commerce's duty and whether the Secretary was required to certify every departure from the IWC's scheduled limits on whaling. See 106 S. Ct. at 2868. Simply put, the question presented to the Supreme Court was whether the Secretary had exceeded his authority by relying on the Murazumi-Baldrige Agreement instead of certifying Japan's IWC-quota overkill in an effort to achieve Congress' objective of protecting and conserving the whales. Thus, the Supreme Court held that
the Secretary's decision to secure the certainty of Japan's future compliance with the IWC's program through the 1984 executive agreement, rather than rely on the possibility that certification and imposition of economic sanctions would produce the same or better result, is a reasonable construction of the Pelly and Packwood Amendments. Congress granted the Secretary the authority to determine whether a foreign nation's whaling in excess of quotas diminshes the effectiveness of the IWC, and we find no reason to impose a mandatory obligation upon the Secretary to certify that every quota violation necessarily fails that standard.
106 S. Ct. at 2872. Thus, even assuming that the Japanese misrepresented their intentions regarding the cessation of commercial whaling, that misrepresentation must be addressed in the first instance by the Secretary of Commerce.
II. PLAINTIFFS' MOTION FOR RELIEF FROM JUDGMENT PRESENTS A CASE OR CONTROVERSY FOR REVIEW BY THIS COURT
Both the defendants and the defendant-intervenors challenge plaintiffs' motion on the ground that it presents no case or controversy ripe for review by this Court. They point to the fact that the subsistence and research proposals have not been enacted, no license has issued, no ship has set sail, and, most importantly, no whale has been harpooned under either proposal. See Defendants' Memorandum in Opposition to Plaintiffs' Motion for Relief from Judgment, pp. 16-19; Intervenors' Memorandum in Opposition to Plaintiffs' Motion for Relief from Judgment, pp. 7-8. The ability of this Court to hear plaintiffs' motion does not depend on these facts. Plaintiffs allege that newly discovered evidence, misrepresentations, and the need to avoid a manifestly unjust result entitles them to relief from judgment under Fed. R. Civ. P. 60(b)(2), (3), and (6). Thus, plaintiffs' motion is entitled to be decided on the merits.
III. PLAINTIFFS' MOTION FOR RELIEF FROM JUDGMENT MUST BE DENIED BECAUSE THEY HAVE FAILED, AS A MATTER OF LAW, TO SHOW SUFFICIENT GROUNDS SUPPORTING RELIEF FROM THE SUPREME COURT'S DECISION
A. Plaintiffs' Allegations that Japan Misrepresented Its Intentions Regarding Commercial Whaling, Even If True, Do Not Disturb the Rule of the Case that the Secretary of Commerce Has Discretion to Consider Alternatives to Certification in an Effort to Encourage Compliance with IWC Quotas
The burden of proof of [misrepresentation] is on the moving party and must be established by clear and convincing evidence. Wright & Miller, Federal Practice and Procedure: Civil § 2860. A motion for relief from judgment on the ground of misrepresentation will be denied if it is merely an attempt to relitigate the case or if the court otherwise concludes that misrepresentation has not been established. See id. Plaintiffs simply fail to meet these requirements and are therefore not entitled to relief from judgment pursuant to Fed. R. Civ. P. 60(b)(3). In the first place, plaintiffs appear to have misread the Supreme Court's holding. The Supreme Court itself did not have to be satisfied that Japanese commercial whaling would cease. Rather, the Court held that it was reasonable for the Secretary of Commerce under the circumstances to conclude that the Japanese would cease such whaling. In the second place, plaintiffs' allegation that the Japanese proposals regarding subsistence whaling and research whaling constitute misrepresentation does not satisfy the clear and convincing standard. Plaintiffs point to no facts beyond several proposals to support their allegation regarding the true nature of Japan's intent with respect to commercial whaling. The Court is convinced that plaintiffs' motion is but an attempt to relitigate a case that it lost before the Supreme Court.
The Supreme Court found in Japan Whaling Association that certification pursuant to the Pelly and Packwood Amendments was not automatic when Japan refused to abide by the IWC quotas because, in the first instance, the Secretary must determine that such operations "diminish the effectiveness" of the ICRW. 106 S. Ct. at 2867. While the Secretary has discretion to make that determination, once it is made, certification is mandatory. In this case, the Secretary "determined that it would better serve the conservation ends of the [ICRW] to accept Japan's pledge to limit its harvest of sperm whales for four years and to cease all commercial whaling in 1988, rather than to impose sanctions and risk continued whaling by the Japanese." Id. In light of this finding, the Supreme Court held that "the Secretary's construction that there are circumstances in which certification may be withheld, despite departures from the [IWC] Schedules and without violating his duty is a reasonable construction of the language used in [the Pelly and Packwood] amendments." Id.